Legal thoughts, since 2005.

Web/Tech

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my weekly Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from April 2018:

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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ABA survey shows lawyers are more mobile than ever in 2018

The iPhone was released in 2007, and it revolutionized the way that we communicate and access information. Smartphones, once a novelty, are now commonplace, in the legal profession. This is because, unlike other types of technology, lawyers jumped on the mobile bandwagon fairly quickly.

As evidenced by the results of the 2017 ABA Legal Technology Survey, lawyers are more mobile than ever before. The reasons are many: mobile computing offers convenience, flexibility, and 24/7 access to important information. Given all the benefits, it’s no wonder that lawyers have taken to mobile devices like a fish takes to water.

According to the survey results, lawyers use a number of different types of mobile devices for law-related tasks while away from their offices. Smartphones are the most commonly used, with 96% of lawyers reporting that they used smartphones while outside the office. Lawyers from firms of 10-49 and from firms of 100-499 used them the most often, with both sets of lawyers reporting usage levels at 98%. Next up were lawyers from firms of 500 or more (97%), followed by lawyers from firms of 50-99 (96%), 2-9 (95%), and solos (93%).

Laptops are also popular, with 81% of lawyers using them for law-related purposes while away from the office. Lawyers from firms of 500 or more reported the greatest use of laptops while out of the office (94%). Lawyers from firms of 100-499 were next at 89%, followed by lawyers form firms of 50-99 (85%), 2-9 (83%), 10-49 (82%), and solos. (74%).

Lawyers were the least likely to use tablets for mobile access while away from the office, with 50% reporting that they did so. Lawyers from firms of 500 or more used tablets the most often (61%). Next up were lawyers form firms of 2-9 (52%), followed by lawyers from firms of 10-49 (51%), solos (49%), lawyers form firms of 50-99 (46%), and lawyers form firms of 100-499 (36%).

According to the lawyers surveyed, they used mobile devices from a variety of different locations.The most common place that lawyers used their mobile devices was their home (96%), followed by hotels (93%), while in transit (89%), airports (85%), clients’ offices (75%), in the courthouse (70%), and other attorneys’ offices (71%).

When it comes to courtroom usage, according to the survey, 57% of lawyers who appear in court have used laptops in the courtroom, up from 46% in 2014. Tops uses for laptops include email (34%), accessing key evidence and documents (33%), legal research (29%), accessing court documents and dockets (27%), calendaring (24%), and delivering presentations (23%).

80% of lawyers who appear in court report using their smartphone in court. Some of the most popular uses include: email (72%), calendaring (58%), real-time communications (44%), legal research (24%), accessing court dockets and documents (15%), and accessing the firm’s network (14%).

When it comes to tablets, 38% of lawyers who appear in court reported using them in court. Tablets were used to accomplish a number of tasks, including email (29%), legal research (25%), calendaring (21%), accessing court documents and dockets (16.5%), and accessing key evidence and documents (15%).

So that’s how lawyers are using mobile devices to practice law in 2018. How does your mobile device usage compare? If you use your mobiles devices less often than your colleagues, perhaps you’re not fully taking advantage of the many benefits the mobile computing offers. Then again, there are undoubtedly drawbacks to the mobile age, not the least of which is the psychological impact of the perception of 24/7 availability. While it’s not always an easy juggling act, the benefits of mobile access are many, both for lawyers and their clients. The key is to find the right balance between the convenience of easy access to information and maintaining the necessary boundaries between work and your home life. Once you’ve found a balance that works for you, you’ll reap the benefits of the flexibility of mobile computing.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Pennsylvania Also Weighs In On Email Tracking

Last week I wrote about the recent ethics opinion out of Illinois, Opinion 18-01, wherein Illinois joined Alaska and New York in concluding that it is unethical for lawyers to use email tracking software. The Alaska committee specifically limited the prohibition to apply to emails with opposing counsel, whereas the other committees offered a broader prohibition that applied to all emails sent by a lawyer.

After my column was published, I learned that Pennsylvania had also issued an opinion addressing email tracking last year, Formal Opinion 2017-300. At issue in this opinion was whether it was ethically permissible for lawyers to use email tracking software when communicating with opposing counsel. As was the case in the Alaska opinion, the inquiry was specifically limited to emails sent to opposing counsel, as opposed to clients and other types fo recipients.

First, the Committee addressed the issue of how email tracking can affect attorney-client confidentiality when used with opposing counsel. The Committee concluded that information gleaned from the tracking tool could constitute an unwarranted intrusion into that confidential relationship, and provided the following scenario by way of example: “(W)hen a lawyer receives a document in the mail from opposing counsel and forwards it to a client, the lawyer and the client may reasonably believe that the sender is not aware of that subsequent communication, including when and how it was transmitted, when the client viewed it, and when or if the client forwarded the document to another person. The use of web bugs is contrary to this assumption.”

Next, the Committee explained that using email tracking tools when communicating with opposing counsel is also problematic because the lawyer receiving the email is unaware of the tracking software and is unable to do anything to disable it: “(T)his Committee believes that their use violates Rule 8.4’s prohibition against ‘conduct involving dishonesty, fraud, deceit or misrepresentation.’ Because the lawyer receiving the email does not and cannot reasonably determine or protect against web bugs, the sending lawyer’s use of these devices would violate Rule 8.4.”

Accordingly, the Committee concluded that using email tracking tools when communicating with opposing counsel is unethical: “This Committee concludes that the Pennsylvania Rules of Professional Conduct prohibit lawyers from using ‘web bugs’ or any other method to track the receipt and distribution of email sent to opposing counsel. While the use of visible tracking devices such as those used in commercial email do not violate the Rules of Professional Conduct, the use of a web bug, which opposing counsel cannot determine is present, violates Rules 4.4 and 8.4.”

Of interest is that the Committee exempted two specific types of email tracking tools from its conclusion and determined that they were ethically permissible: 1) email list services and 2) “read receipt” tools. The Committee explained that in both cases, the recipient has the ability to opt into the tracking, thus differentiating these tools from the email tracking software at issue in the opinion.

The Committee explained that email list software, such as Mail Chimp, did not violate the ethics rules since “(1) they are mass emails, and not personal to a client matter; (2) those services display their links to encourage users to click on them; and (3) lawyers and other recipients are aware that they are clicking on the links.”

Similarly, “read receipt” or “delivery receipt” tools, which are available for use in many email platforms, including Outlook, were permissible for lawyers to use since “recipients are aware of, and may configure their software to permit such receipts, to make their use optional, or to preclude their use…”

So, Pennsylvania lawyers have joined the ranks of those who should avoid using email tracking tools with opposing counsel. For those of you who practice in one of the many jurisdictions where this issue has not yet been addressed, I would suggest that it would be wise to err on the side of caution and, in the absence of consent, avoid using software with opposing counsel that could provide insights regarding their online behavior, whether it’s part of an email program or otherwise. After all, it’s better to be safe than sorry.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Here’s How Lawyers Can Demystify Legal Technology

In last week’s column, I shared an assortment of online resources that lawyers can use to stay on top of legal technology. It’s not an easy task, given the rapid pace of technological change. Not surprisingly, that’s why some lawyers ignore technology altogether: it’s overwhelming for them to even consider learning about emerging technologies.

Doing so is undoubtedly a mistake, since 31 states now require lawyers to maintain technology competence as part of their ethical obligations, of which New York is one. But the question remains: how can lawyers find time to educate themselves about technology?

One way is to take advantage of the resources offered by your local and state bar associations. For example, when the recently formed Technology and Law Practice Committee that I chair for the Monroe County Bar Association meets each month, we host remote technology-related Q&As with legal technology experts. Our goal is to educate bar members and help them make better choices when it comes to incorporating technology into their firms.

These Q & As can be attended by all bar members, even if they’re not able to attend the meeting in-person, since the sessions are hosted online via GoToMeeting. This makes it easy for lawyers to sign in and participate remotely from their office computers. Recordings of those Q&As are also available online at the Bar’s website. Past interviews have included well-known legal technology experts Bob Ambrogi, Kevin O’Keefe, Mitch Kowalski, and Allison Shields. Next month’s meeting will be a Q & A with Jim Calloway, Director of the Oklahoma Bar Association's Management Assistance Program, so I hope you can join us!

Another way to stay abreast of technological change is by taking advantage of CLEs designed to help solo and small firm lawyers sift through the vast amounts of information about legal technology that’s available, both online and off. By attending these CLEs, you’ll learn the ins and outs of legal technology, which will help you make the right choices for your law firm.

In June, there’s a CLE planned locally that will help you do just that, so if you’re a Monroe County lawyer who’s struggling to incorporate technology into your law firm, you’re in luck. The Technology and Law Practice Committee is putting on a seminar on June 22nd at 12:15 entitled, “Demystifying technology: How to effectively - and ethically - use technology in your law firm.” You can register for it at the Bar’s website.

Meredith Lamb, a matrimonial attorney with Weinstein & Randisi, will be moderating a panel discussion during which you'll hear from two Rochester-based solo lawyers who have successfully implemented technology into their law practices: Danielle Wild and Aleksander Nikolas. They'll explain how and why they chose the specific tools they rely on every day to streamline their law firms. You’ll also hear their advice and practical tips, including lessons learned from their experiences. I’ll also be on the panel and will speak about the duty of technology competence and will explain why it's important for New York lawyers to make educated decisions about whether or not to use technology in their practices. The ethics of using cloud computing software will be discussed, along with examples of how different types of technology can streamline a practice. Finally, you’ll learn about resources that will help you stay on top of technology changes.

So if one of your priorities this year is to update your legal technology know-how, then this CLE is for you. With just a small investment of your time, you’ll gain lots of knowledge and will leave armed with the information you need to make informed technology decisions for your law firm.

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from March 2018:

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Illinois Weighs in on Ethics of Email Tracking for Lawyers

As technology evolves, so too do the tools we use to enhance even the most basic technologies that we interact with on a day-to-day basis. For example: email. It’s been part of our lives for decades now, and while it hasn’t changed much, there are a multitude of tools available that increase its functionality.

That’s why ethical issue relating to lawyers’ use of email continue to arise even though email use by lawyers was given the ethical nod more than 20 years ago. Some concerns relate to the security of email now that more advanced and encrypted methods of electronic communication are available. Other issues revolve around the use of tools designed to enhance the functionality of email, such as email tracking.

I last wrote about the ethics of the use of email tracking software by lawyers in December 2016, after the Alaska Bar Association Ethics Committee concluded in Opinion 2016-1 that even if the use of email tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical.

More recently, the Illinois State Bar Association addressed that very same issue in Advisory Opinion 18-01. Specifically, the inquiring attorney asked whether “the use of undisclosed ‘tracking’ software (sometimes known as ‘web bugs,’ ‘web beacons,’ or ‘spymail’) in emails or other electronic communications with other lawyers or clients is ethically permissible.”

At the outset of the opinion, the Committee explained that this type of software typically tracks, among other things: “1) when the email was opened; 2) how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities); 3) how many times the email was opened; 4) whether the recipient opened attachments to the email; 5) how long the attachment (or a page of the attachment) was reviewed; 6) whether and when the subject email or attachment was forwarded; and 7) the rough geographical location of the recipient.”

Next, the Committee noted that most lawyers operated under the very reasonable assumption that electronic communications with opposing counsel would be free from any type of tracking. The Committee explained that this was especially so given the nature of the information that could be obtained via email tracking software, including “how much time the receiving lawyer spent reviewing the communication – including even specific pages of documents – or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.”

Next, the Committee turned to the sensitive nature of the information that could be obtained from email tracking, opining that the use of such software to track electronic communications with opposing counsel evidences “the lack of straightforwardness that is a hallmark of dishonest conduct.”

Accordingly, the Committee concluded that even if the use of email tracking tools were disclosed to opposing counsel, their use was nevertheless impermissible since the software allowed “the sending lawyer to intrude upon the attorney’s work product by tracking the attorney’s use of that document, (thus constituting) an unwarranted intrusion into the attorney-client relationship.”

Other than Illinois and Alaska, the New York State Bar is the only other bar I’m aware of that has addressed this issue and it reached a similar conclusion. In 2001 in Opinion 749, the Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.” So, New York lawyers are likewise barred from using email tracking software.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Alaska weighs in on risks of blind copying clients on email

In the mid-1990s, bar associations began to green light email, opining that lawyers could ethically use email to communicate with clients. However, that permission was granted with the proviso that as technology improved, alternate, more secure methods of digital communication might emerge thus rendering unencrypted email to be an outdated mode of client communication.That’s why, last May the American Bar Association issued Formal Opinion 477, in which the ethics committee concluded that unencrypted email was inherently unsecure and that lawyers must either use a more secure method of communication with clients, such as secure online client portals or encrypted email, or determine on a case-by-case basis whether using email would be ethically permissible.

A recent opinion issued by the Alaska Bar Association provides further evidence of the complexities encountered hen lawyers use email for client communication. At issue in Ethics Opinion 2018-1 was whether it was ethical for a lawyer to “cc” or “bcc” a client in on email correspondence with opposing counsel. Specifically, the Committee was concerned with the potential risks of waiving attorney-client privilege in that scenario. The Committee also considered the ethical obligations of counsel when responding to an email wherein opposing counsel’s client is copied in on the email.

The Committee determined that for confidentiality reasons, it is unwise to “cc” one’s client in on all but purely administrative emails, such as notifications of future court dates: “Recognizing the obligation to protect a client’s secrets and confidences, it is not advisable for a lawyer to ‘cc’ their client in a message to opposing counsel concerning the subject of the representation or any other matter that may give rise to a response that could reveal a client confidence or secret.”

The Committee also concluded that if a lawyer plans to “cc” a client in on emails, it is important to obtain the consent of opposing counsel before doing so, since lawyers are prohibited from communicating with communicating with opposing parties in the absence of consent from their attorneys. The Committee explained the risk as follows: “E-mail addresses often do not obviously indicate the identity of the person behind the address. A lawyer who ‘replies all’ may therefore be unaware that the ‘cc’ includes a represented party. So too, e-mails can often include a long list of ‘cc’d’ recipients, once again making it difficult to discern if a represented party has been included in that list. Inadvertent communications with represented parties can easily occur even with reasonable care exercised by the recipient of the e-mail.”

Next the Committee turned to the issues presented when an attorney chooses to “bcc” a client. The Committee adopted the position taken by the New York State Bar Association in 2015 in Ethics Op. 1076, concluding that lawyers should avoid doing so since a “client who receives an e-mail as a ‘bcc’ may ‘reply all’ and inadvertently communicate directly with opposing counsel. An unsophisticated client may not realize the effect that the communication may have on disclosing matters that otherwise would be confidential.”

Finally the Committee recommended that should a lawyer who chooses to communicate with clients using email wish to share with a client information from an email sent by opposing counsel, the most prudent course of action would be to simply forward the email to the client.

Alternatively, instead of jumping through all of these hoops in order to be ethically compliant when using email, 21st century lawyers now have a more secure, foolproof way of sharing information with clients, including emails from opposing counsel: the secure online portals often built into law practice management software. Instead of running the risk of breaching client confidences by inadvertently “bcc’ing” or “cc’ing” clients, you can instead share the email with your clients via secure online portals designed for that very purpose. Doing so not only avoids the host of ethical minefields presented when emailing with your clients and opposing counsel, but also allows you to be in full compliance with ABA Op. 477, and sidestep the security issues presented by email altogether.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Top resources for lawyers seeking technology competence

These days, technology is unavoidable. Even lawyers can’t escape it and now regularly use technology as part of their day-to-day practices. For example, according to the 2017 American Bar Association’s Legal Technology Survey Report (“Report”), 94% of lawyers now use smartphones for law-related purposes.

Cloud computing has made its mark, too, with more lawyers using it in 2018 than ever before. In fact, according the Report, the number of lawyers incorporating cloud computing software into their law practices increased by 14% over the past year. The survey results showed that after remaining stagnant at ~30% from 2013-15, and then increasing to 38% in 2016, there was a large increase in 2017, and that percentage jumped to 52%.

Of course, although the use of technology in law firms is increasing at a rapid clip, that doesn’t mean that all lawyers should be using technology. Instead, it’s up to each lawyer to determine if and when to implement technology tools into their practice. But in order to do that, you need to fully understand the technologies available to you. Otherwise you won’t be able to make educated decisions about technology.

Because of the rapid pace of technological change, the thought of learning about emerging technologies often seems overwhelming to lawyers, leading some lawyers to choose to ignore technology altogether. Rest assured, that’s a mistake, especially now that 31 states require lawyers to maintain technology competence as part of their ethical obligations, of which New York is one.

Since ignoring technology isn’t an option, here are some resources to help you learn about the latest legal technology options so that you can make educated choices about implementing technology into your law firm.

First, there’s a great book focused on helping solo and small firm lawyers to make wise decisions about technology tools for their law office, “The 2018 Solo and Small Firm Legal Technology Guide,” which is published by the American Bar Association. This book is written by legal technology experts and is full of the information solo and small-firm lawyers need in order to make knowledgeable, informed decisions about law office technology. The authors — Attorney Sharon Nelson, Certified Information Systems Security Professional John Simek, and Digital Forensics Examiner Michael Maschke — cover a vast range of hardware and software tools, provide a wealth of information and tips on choosing the right technology for your firm, and offer their perspective on the impact of emerging technologies on the practice of law.

Blogs are another great resource for lawyers seeking to learn about legal technology. However, there are a lot of blogs out there, so choosing which ones to follow isn’t always easy. To get you started, here are some of my favorite legal technology blogs.

First, there are the legal technology columns at Above the Law. These columns are written by a number of different legal technology bloggers here (myself included), and are always informative and cover a variety of legal technology issues.

Next, a blog that has been around since 2002: Bob Ambrogi’s LawSites, which provides news about the legal tech industry and lots of great advice for lawyers seeking to learn more about using technology in their practices.

Other popular legal technology blogs to consider include: 1) Future Lawyer, written by the always-knowledgable Florida litigator Rick Georges; 2) Technologist, a group blog; 3) Divorce Discourse, where attorney Lee Rosen shares technology and law practice management advice; 4) Law Practice Tips, a blog chock full of wisdom from Jim Calloway, an attorney and the Director of the Oklahoma Bar Association’s Management Assistance Program; 5) iPhone JD, where attorney Jeff Richardson covers all things Apple-related, including iPhones and iPads; 6) Ride the Lightening, which covers a variety of interesting legal technology issues and is authored by lawyer Sharon Nelson, who offers her opinion on the effect of legal technology on the practice of law; and 7) the MyCase blog, where I regularly write about a host of legal tech issues.

So now that you know where to turn to learn all about legal technology, what are you waiting for? Start reading some of these resources today, and you’ll be well on your way to the technology competence needed to make the right legal technology choices for your law firm.

Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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New York Court of Appeals on discoverability of Facebook messages

For litigators, social media platforms have increasingly become an invaluable source of evidence. So it’s not surprising that discovery disputes often arise regarding the scope of requests for social media-related information.

Last month, one of those discovery disputes reached the New York Court of Appeals in a negligence case relating to injuries that the plaintiff suffered after a fall from a horse. In Forman v. Henkin, the plaintiff alleged that the injuries were caused by the negligence of the defendant and owner of the horse. During the course of discovery, the defendant sought access to the plaintiff’s entire Facebook account - including information that was located behind the privacy wall that could be seen only be the plaintiff’s “friends” and, presumably, private Facebook messages as well - after she’d made reference to the Facebook data during a deposition. At issue was whether the information behind the Facebook privacy wall was relevant to the issues at hand and thus discoverable.

At the outset, the Court wisely acknowledged that that the online was no different than the offline when it came to the application of the standards governing discovery requests: “While Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”

Next, the Court clarified that the appropriate determination to be made when a party seeks evidence found on social media platforms is whether the information is relevant to the issues in the case. The court explained, “New York discovery rules do not condition a party’s receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information…In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder’s so-called ‘privacy’ settings govern the scope of disclosure of social media materials.”

The Court cautioned, however, that a discovery request for social media-related information does not trigger mandatory disclosure of all posts. The Court then turned to an offline equivalent to make its point: “Directing disclosure of a party’s entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation – such an order would be likely to yield far more nonrelevant than relevant information.”

The Court then explained that a 2-prong inquiry should be made by courts considering motions relating to discovery requests for social media data: “Courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific ‘privacy’ or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials…Temporal limitations may also be appropriate – for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation.”

Unlike some other New York courts that have addressed these types of issues, the court did not differentiate between social media posts behind a privacy wall that are viewable by all of the person’s “friends” versus private messages sent only to one person. Instead, the court put the onus on the plaintiff to take measures to prevent disclosure of “sensitive or embarrassing” information explaining that “the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.”

Overall, this was an instructive opinion that provides necessary guidance to New York litigators seeking to use social media evidence in their cases. That being said, I do wish that a distinction had been made regarding the different types of posts on Facebook, rather than grouping all non-public posts made behind the privacy wall together. Private messages between two people are, as one Appellate Court judge has noted in the past, more akin to diary entries and thus may not be discoverable absent a greater showing of relevancy. Nevertheless, the highest court in New York has spoken. New York litigators, take note.

I often write articles and blog posts for other outlets and am going to post a round up here from time to time (but won't include my Daily Record articles in the round up since I re-publish them to this blog in full). Here are my posts and articles from February 2018:

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